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Tuesday, March 7, 2017

The Republic Strikes Back

Michael A. Thiac

The election of Donald Trump was a political earthquake. More than just populism, Trump's victory opens the door to the dismantling of a century's worth of what has come to be known as "the administrative state" and returning to its rightful owners, the citizens. Retracing the history of how this came to be shows what the Trump revolution is up against.

One of the great abuses brought on by the Regressive Era (late 1800s on) came when Congress, knowingly and willingly, transferred legislative power to the bureaucracy. Up until then, Congress was obligated to debate an issue, pass a bill, send it to the president for signature or veto, and assuming his signature, see the new law implemented by the executive branch. The Framers knew the nature of the government was to expand without limit, so they made the enactment of laws difficult.

These protections were first breached by the Wilson administration, and then nearly decimated by Franklin Roosevelt, as one bureaucracy after another was foisted upon the American people. The judiciary initially held against this onslaught for a time, but eventually fell to the threat of the Democrats packing the courts, but also grew in numbers of judicial activists, perhaps as a side effect of this power grab.

The trend continued as LBJs "Great Society," and the Nixon administration imposed dozens of new agencies (OSHA, EPA, etc.) upon the American people, issuing regulations with the force of law, but not the constitutionally guaranteed rights of due process, presumption of innocence, requirement of proof beyond a reasonable doubt in an open court, right to force witnesses in one's defense, etc. It continued through the 20th century until its very end. In 1991, the George H.W. Bush administration inflicted the Americans with Disabilities Act onto the already extended list. Thanks to this act and the thousands of regulations it has spawned, a tsunami of lawsuits have been the result. We see people suing store owners because their "Disabled Parking" signs don't say "Van Accessible." And after seeing photos of their pools on Google Maps, hotel owners are being sued for not having disabled access to their pools. The fact that they never were informed they need to have them is not relevant, but the supposedly wounded party will "settle this for a little cash…"

The disaster of the Obama years (e.g. Dodd-Frank, Obamacare, "I got a pen and a phone…") brought the administrative state to its zenith. Thousands of pages of regulations on health care without any capacity to control the HHS bureaucracy have made the business of medicine impossible to conduct. It extended into other areas of unaccountability as well. Members of Congress sought to ban people on the DHS's "No Fly" list from purchasing firearms. The fact that American citizens would be denied their right to keep and bear arms, without any notice or ability to appeal never seemed to concern senators such as Susan Collins or John McCain.

Well, in the early days of the Trump presidency, we seem to have a new hope.

Last, week, under the cover of a media bliss-out except among Koch funded right-wing channels, the House of Representatives passed a bill which would effectively repeal future standard setting under every important environmental, public health, consumer protection, labor standards, occupational safety and civil rights law on the books.

The bill, called the REINS Act, requires that any future major regulation adopted by an Executive Agency - say a new toxic chemical standard required by the recently enacted Chemical Safety Act, or a new consumer protection rule about some innovative but untested kind of food additive - must be approved by a specific resolution in each House of Congress within 70 days to take effect.

To give a sense of the scale of this road-block, in 2015 there were 43 such major federal regulations passed to protect the public; among them were food safety regulations, the Clean Power Plan regulating pollution from electrical generating facilities, net neutrality rules protecting the internet from monopoly, restrictions on predatory lending and energy efficiency standards for appliances.

If the REINS Act had been in effect, it's unlikely that the Tea Party-dominated Republican caucus in the House would have approved of any of these rules. Future standard setting under the entire body of legislation enacted over the past 40 years to protect the public, from the Clean Air Act to the Dodd Frank financial sector reforms, would be frozen. Over time, as new health, safety, consumer and labor protection issues arise, all of these laws will effectively have been repealed, with no public debate and no accountability. It will also be impossible to restore them as long as the REINS Act is in effect, because by requiring Congress to approve every regulation, it makes it impossible to pass technically complex and scientifically valid rules on any topic of controversy….

This is a first step, very tentative, but it is a move against the unaccountable bureaucracy abusing the rights of the American people. Years of examples of how people have been told their backyard is a wetland because of a seasonal creek or of the attempt to shield Obamacare and other programs from Congressional oversight. and other abuses show that the administrative branch of the federal government must be brought to heel. In his book Liberty and Tyranny, Mark Levin suggested sunsetting all "independent" federal agencies every year, requiring them to be reauthorized with each budget. The thought of the EPA having to justify its existence and massive grants to fund propaganda and lobbying is beautiful. Perhaps they will be stopped from extorting billions for left wing groups from legitimate business.

But this will require the members of the Congress to actually do their jobs. John McCain, get off your ass and do your job, control these agencies and stop trying to find out if a baseball player used steroids.

Michael A. Thiac is a police patrol sergeant and a retired Army intelligence officer. When not patrolling the streets, he can be found on A Cop's Watch.